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Heisman

Heisman

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Published by Eriq Gardner
@eriqgardner
@eriqgardner

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Published by: Eriq Gardner on Mar 26, 2014
Copyright:Traditional Copyright: All rights reserved

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04/02/2014

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UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF MICHIGAN___________________________________BRIAN MASCK,Plaintiff,File No.vHon.OPTIMUM MEDIA DIRECTION, INC.,d/b/a OMD; ESPN, INC.; and TBWA\CHIAT\DAY,Defendants.___________________________________Thomas H. Blaske (P26760)John F. Turck IV (P67670)BLASKE & BLASKE, P.L.C.Attorneys for Plaintiff 500 South Main Street Ann Arbor, Michigan 48104(734) 747-7055
COMPLAINT
There is another civil action not between these parties but which does arise out of some of the same transactions or occurrences as alleged in this Complaint pendingin this Court as File No. 2:13-cv-10226 before Hon. Gershwin A. Drain as
 Brian Masck v Sports Illustrated; Nissan North America; Getty Images, Inc.; ChampionsPress, L.L.C.; Desmond Howard; Photo File, Inc.; Fathead, L.L.C.; Wal-mart Stores, Inc; Wal-mart.com USA, L.L.C. and Amazon.com, Inc.
___ /s/ Thomas H. Blaske ___Thomas H. Blaske (P26760)John F. Turck IV (P67670)
2:14-cv-11224-NGE-MJH Doc # 1 Filed 03/24/14 Pg 1 of 42 Pg ID 1
 
Page 2 of 42Plaintiff Brian Masck, by and through his attorneys, Blaske & Blaske, P.L.C., for his Complaintsays:
PARTIES AND JURISDICTION
1.Plaintiff Brian Masck is a resident of Genesee County, Michigan and conducts businesswithin the State of Michigan.2.Defendant Optimum Media Direction (sometimes and hereinafter also known as OMD)is a media marketing company which placed the Nissan Heisman Trophy Photo poseadvertisement described below in Sports Illustrated.3.Defendant ESPN, Inc. owns and controls ESPN The Magazine, into which the NissanHeisman Trophy Photo pose advertisement described below was also placed..4.Defendant TBWA/Chiat/Day is the advertising agency which worked with OMD to designand develop the Nissan Heisman Trophy Photo pose advertisement described below whichended up in Sports Illustrated and ESPN The Magazine.5.This Court has original jurisdiction pursuant to 28 U.S.C. §§ 1331, 1338(a), and 1338(b)as, among others, Plaintiff brings claims under the Copyright Act, 17 U.S.C. § 101,
et seq
.,and the Lanham Act, 15 U.S.C. § 1051,
et seq
.6.This Court has supplemental jurisdiction pursuant to 28 U.S.C. § 1367.7.Venue is proper under 28 U.S.C. § 1391(b)(2) because a substantial part of the eventsgiving rise to the claims made herein occurred in the Eastern District of the State of Michigan and because the events giving rise to the claim significantly impacted businessin the Eastern District of the State of Michigan. 8.Venue also is proper under 28 U.S.C. §1391(b)(3) because, if no single District exists inwhich an action may otherwise be brought, Defendants Champions Press and Fathead
2:14-cv-11224-NGE-MJH Doc # 1 Filed 03/24/14 Pg 2 of 42 Pg ID 2
 
1
See below for a photograph of President Obama and others striking the DesmondHoward Heisman Trophy pose.Page 3 of 42
 Brian Masck’s 1991 Desmond  Howard Heisman Pose photograph
reside in the Eastern District of Michigan and are subject to personal jurisdiction of thisCourt.
STATEMENT OF THE CASE
9.The Desmond Howard Heisman Pose photograph (“Heisman Pose photo”), taken byplaintiff Brian Masck on November 23, 1991, is one of the most famous photos ever takenof a college athlete. The photograph is synonymous with college football and even hastouched off a cultural phenomenon -- striking the “Heisman pose.” If you search GoogleImages for “Heisman pose,” the result brings up thousands of pictures – includingPresident Obama striking the Heisman pose
1
 – but the first is Brian Masck’s DesmondHoward Heisman Pose photo, even before any images of the actual Heisman Trophy itself.10.With one leg lifted off the ground, Desmond Howard’s pose in Masck’s famousphotograph is somewhat different from the actual stance of the football player depicted in
2:14-cv-11224-NGE-MJH Doc # 1 Filed 03/24/14 Pg 3 of 42 Pg ID 3

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